Petition for Writ of Certiorari — Hellner v. United States

oY

2

: Otfice Supreme Court. U.S.

Res ‘ id r ~ j 7 } I ] b D

Sree . >

in Se JUL 10 1963

JORN F. DAVIS, CLERK

| IN THE . |

‘Supreme Court of the United States

OCTORER TERM, 1964 .

AK! "

CLAYTON B. HELLNER, ET AL,

_ Petitioners,

We

» UNITED STATES OF AMERICA, |

| Respondent.

PETITION FOR WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF CLAIMS

(Filed July 10, 1964)

PAUL R. HARMEL

Attorney for Petitioners

909 Tower Building

Washington 5, D.C.

’. GEIGER, HARMEL.& SCHUCHAT

Of Counsel

Washington, D.C.

WILSON - EPES PRINTING CO - RE 7-6002 - WASHINGTON? D C

NDEX

Page

ccc Bae ae acetates 1

- OPINIONS BELOW |... eee teectereenectie “ 2

2 | ly | Pate ee ere ger 2

THE QUESTIONS .............22.---:0:cc-ceseseseestecceseessereenenesneatanee 3

STATUTES nVvOLT ED... De Nie eee oe eee

STATEMENT .....0.0..ne-c0ons-cosee0s-r-- ee: Cee ee et ae

REASONS FOR GRANTING WRIT........... mete ontrat 14

CASES

iad Vv. MacKenzie. 306 F. 24 248 (1962)........... 14,15

Bolger Vv. Marshall, 193 F. 2d 87 (1957) ....-....-.----------- 14

Burns v. McCrary, 229 F. 2d 286 (1956)... oat! 14,15

Ficks v. U. S., 172-F. Supp. 445, 145 Ct. Cl. 522)

cack a reneesssunnediien esnesior edbeee nekedenaend ciniechsen canninnint 16

- Friedman. v. U. S., 158 F. Supp. 564, 141 Ct. Cl. 239 *

RN ga dey. ear iccer oacerecaceccaani nist eens bias 16,19

Friedman, Erceutriz v. U. S., 310 F. 24 381 (1962),

cert. denied 373 U.S. 932... _...2, 19, 12, 13, 21, 23, 34-88

Glidden v. Zdanok, 370 U.S. 530 (4 eae he catts . 17

Gonzales v. U. S., 348 U.S; 407 (1955) .............-..--. Mie 18

Gusiek v. Schilder, 8340 US. 128 (1950) -.......-..----- 14, 15. 16

Harper v. U.'S., 310 F. 2d 405 IR ge hrscecettestessausenens 19

Hermann v. U. S., 81 F. Supp. coi 113 Ct. Cl. 54

SURMIE S tee ge eeL. ce

Hooper v. Har. man, 163 F. Supp. 437 (19: 58). peed, 14,15

Hunter Vv. Beets, 180 F. 2d 101 (1950). ee

Knight v. U. S., 152 Ct. Cl. 298, Jan. 18, 1961. ..13, 16, 17, 19

- Lipp v. UL S., 301 F. 2d 674 (1962), 157 Ct.Cl. 197

oust. denied BTS UG. Bibs. ---senscc.000050050050. 2, 10, 17, 19, 23, 24

' Marshall v. B & O RR Co.., 16 How, * (U.S.) 314

(1858 ).......: PDS LF MLE Bae PPR Dy OLE LAO GFE OP OY EON ae |

Merriott v. U.S Ct Cl. ‘No. OT: 1- 61, Nov. 1, 1963 .. a ee

oy ON 40 “924,81

Michaelson Vv. Herren, 242 F. od OS (2067) ....2 025. — 74

ii = _* INDEX— (Continued) Sine

ee a , Ae : Page

Morris v. U.S... Ct. Cl. 824-61, Nov. 15, 1968... Lo, ee

Odell v. U. S.. 139 F. Supp. 749, 184 Ct. CL, 634 - ‘

EEE ean te Roseeet 17.

Ogden Vv. Zucherg, 298 F, 2d 312 1) NES erates 16

Prince v. U. S.. 119 F. Supp: 421, 127 Ct. Cl. 612

Lg! eRe Aree RO yes nea PE sme

‘Randolph v. U. S., 69 F. Supp. 156 (1916). oiscs

Reed Vv. Franke, 298: ee Oe aac, =:

_ Robertson. v. Chambers, 341 U.S. 87, (1951) .0000000008... oe

Robinson v. U. S., Ct. Cl., No. 433-59, Nov. 15, 1968... 2, 10,

21, 24, ai”

Rosnick v. U. S., 182 F. Supp. 478, 132 Ct. CL: 1

(| RS Resyittn SME Cae ish ALG Ame EL OC Oem 16. '

Sayers v. U. S., 102 Ct. Cl; 791 (1945) ..000. Biss 17

Schiffman v.U. S.,.319 F. 2d 886, July 12, 1963... 21, 36

Service Vv. Dulles, 354 U.S.°363 (1957) ..................-.-.---- “18

Uhley v. U. S.. 128 F. cal 674, 129 Ct. Cl. 608

| ERR RON oe OE a oN Ai Ea eR OO FOE 14

U.S, ¥. Ellsworth, 101. U.S 170 (1880) Vet ROSCOE ep 17

U.S. v. Moser. 266 U.S. 226 | SSE GEOETSE CEE. I |

U.S. v. Sing Tuck, 194 U.S. 161 (1904).................... ' 14

U.S. v. Watson, 130 U.S. .80 (1889) ......00000.0 17

Vitarelli Vv. Seaton, 359 U.S. 5385 (1959) ooo... 18

_ STATUTES

5 ULS.C. §$ 191a (1954), 65 Stat. 655, Act of Oc +t ‘25, °

195, now 10 U.S.C. 1662....:.......:..... ...6, T, 8, 11, 28

6 U.S.C. 1006 a See Sate Ie NN Ora ALA EPR ss 18

10 U.S.C. $456 (1946), 53 Stat. 557, Act of April 3, vee

BP cvascxseunk NELSONS gh SL OS Np He SP AR RR eP 6,17, 25

10 U.S.C. $861 (1952), K.S.. § 1268.........................6, 17, 29

10 U.S.C. § 961-965 (1952), R. S. § 1246-12 250 ...... .6, 7, 25-26

' 10 U.S.C. x 2771. oF a ee

28 ULS.C. § “0501 (Supp. 1963), 63. Stat. 1246. 5, 7, 10,

“93, 25, 31

ee Wun ee BOE, NWO COD OE) osc coccecssececcssssss 7

88 U.S.C. § 693h (1946), 58 Stat. 286, Act ef June 29,

1944 now 10 U.S.C. § 15538 eit senae-s cervey 14-15, 2B

38 U.S.C. § 6931 (1946), 5% Stat. 248, 287, Act of June

ae, 2ee4 Bow 10 U.S. § 1064................00.......2 6, 7, 8, 15, 27

=

* @ s

‘g ;

es 7

INDEX (Continued) ~ oe iit

MISCELLANEOUS

eee Page

_ Army Regulation 15-185, 15 July 1955.0... ° §$

Hearings on H. Res. ‘141 and 447, 80th ‘Congress,

; Saale ene BE RRO EE AOE {NOEL nd ae RD 8, 9, fn. 4,21

Hearings before S. Comm. on-Armed Services re H.R. .

i sc teste Sit cratocnns arcetes Uesiere mceienrens snes 10, fn. 4

Meador, “Judicial Determination of Military Status”,

(i ee ncn nO ne 14,15

Report of Investigation of Physical Disability Retire-

ment of Army, Navy and Marine Corps, Legal Sub-

committee, H. Comm. on Armed Services, 80th Con-

TOR Ses Ais ra APOE NEE NCE ect a Ris Saher Rhee 9, fn. 4

S. Report No. 1081, Sist Cong., First Session, S.

Armed Services Comm........- Tne SEA sa ae ASIA a 10, fn. 4

War Dept. Technical Manual, TM 12-245, 1 October

BI aciaoaiactursuegcintedihscateatiudie its cidieatplecaaceipaoheudeigabaineaninies 21

‘Davis, Administrative eg AMR Sa Ri aes Pn at a

&

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1964

No.

CLAYTON B. HELLNER, ET AL,

Petitioners,

4 ae

— STATES OF AMERICA,

_ Respondent.

PETITION FOR WRITS_OF CERTIORARI TO THE

UNITED STATES COURT OF —

Petitioners, Clayton B. Hellner,, Mrr. Katherine Rob-

‘bins, widow of Gail S. Robbins, deceased,’ Lisandro

Ramirez, Herbert J. Davis, William J. Walsh, Herman J.

Herzog, Fred S. Tutton, Douglas B. Bagnell, Tanner C.

Dye and Fern Swartz, widow of Howard W. Swartz,

deceasea, pray that writs of certiori issue to review the’

judgments ui the United States.Court of Claims entered

in the cases numbered, respectively, 15-60, 45-62, 85-61,

168-54, 419-61, 117-63, 271-63, 257-61, 228-61 and 322-

55 on the records of said court. |

1QOn April 22, 1964, the Chief Justice granted the nities ition of

Clayton B. Hellner and Gail S. Robbins to extend the time for: filing

their petition to. and including July 13, 1964. Gail S. Robbins died

on June 19; 1964 and, under 10 U.S.C. Sec. 2771, his widow has

succeeded to the ownership of _ claim.

come

OPINIONS BELOW

There were no opinions in any of the ten cases with the .

exception of Dye (Appendix, pg. 31), merely summary

orders of the court granting the government’s motions

to dismiss the petitions and denying petitioners’ applica- |

tions for rehearing. Typical orders are printed in Appen-

dix pgs. 23-24. In these orders the court cited, collec-

tively, Lipp v. U.S., 301. F. 2d 674, (1962), cert. denied —

373 U.S., 932; Friedman, Executrix v. U.S, 310 F. 2d

381, (1962), cert. denied 373 U.S. 932; Merriott v. U.S.,

Ct.Cl. No. 374-61, decided Nov. 15, 1963; and Robinson

v. U.S., Ct.Cl. No. 483-59, decided Nov. 15, 1963.

_ JURISDICLION

Judgments dismissing the petitions were entered as

follows: Hellner, Nov. 15,1963 (Hellner R 33) ; * Robbins,

Nov. 22, 1963 (Robbins R 28) ; Ramirez, Nov. 15, 1963-

(Ramirez R 34); Davis, Jan. 24, 1964 (Davis R 42);

Walsh, Jan. 3, 1964 (Walsh R 34); Herzog, Feb. 28,

1964 (Herzog R 68-69); Tutton, ‘May 1, 1964 (Tutton

R 29); Bagnell, Jan. 24, 1964 (Bagnell R 57); Dye,

June 12, 1964 (Dye 'R 56); Swartz, Nov. 27, 1963

(Swartz R63). ty es

*. Motions or applications for rehearing were-denied as.

follows: Hellner; Feb. 14, 1964 (Hellner R 68) ; Robbins,

March 13, 1964 (Robbins R 45); Ramirez, May 15, 1964

(Ramirez R 43); Davis, April 17, 1964 (Davis R 53) ;

Walsh, April 17,°1964 (Walsh R 41); Herzog, Aug. lo,

1964 (Herzog R-73).; Bagnell, April 17, 1964 (Bagnell R

62) ;-Swartz, Jan. 24 and April 17, 1964 (Swartz R 30).

The jurisdiction of this Court is invoked under 28

U.S.C. Sec. 1255(1). The review of these cases on cer-

2“Hollner R 33” stands for page 33 of the certified transcript of

the Court of Claims record in*the Hellner case. The certified tran-

script of the record of each of the ten cases has been filed in this

Court. iz

3

tiorari to the U.S. Court. of Claims is sought in a single .

petition pursuant to Rule 23(5) of this Court.

THE QUESTIONS —

RAK |, When Osnipesian in 1939, enacted a statute con-

ferring disability retirement benefits upon Officers in the

non-Recular components of the Army of the United States.

in order to induce civilians to leave their occupations and

professions to become such officers and to serve in the

armed forces when néeded for the defense of. the United

States, and |

When such officers, at the time of their sliiiiin’ from ac-

tive military service, during or shortly after World War

II, were permanently disabled due to disease or injury

incurred in the service, but beeause of willful denial of

their statutory rights or because of error as to their actual.

physical condition or the .cause .thereof, they were found.

by military retiring boards and the Secretaries of the ser-

vices, not entitled to retirement benefits, including dis-

ability retirement pay, and |

When Congress, to enable such diliere to realize.their

statutory rights, established two additiona! judicial boards -

within the services, in 1944 a disability review board,

and in 1946 arid 1951 a board for the correction of mili-

tary records. (also called correction. board), and author-

ized such boards, in reviewing retiring board decisions,

tu consider the claims de novo, not only upon the evi-

_dence in existence at the time of the retiring board de-

cisions, but upon evidence occurring thereafter, duri ing the’

liberal period of time Congress provided for the presen-

tation of the claims to the.new boards. 2 minimum-of 15

vears from the-enactment of the 19-44 legislation creat-

ing the disability review board and of ‘10 vears-from .the

enactment of the 1951 legislati on pertaining to the’ cor-

retin board,.and a ree

4

. When the officers applied to the new boards within the

period permitted by Congress and submitted to such

boards substantial, material evidence -which occurred

after the decisions of the retiring boards and. which

demonstrated these decisions to have been erroneous and

based upon incomplete or premature facts, and

When the new boards, arbitrarily and without due

process of law, still denied the officers their statutory re-

tirement benefits, and ,

When, having exhaustea their judicial remedies in the

military establishment, -the officers, within 6 years after

the decision of the final military board, the correction

board, filed petitions in the United States Court of Claims,

which possessed exclusive jurisdiction among the federal

courts to award disability retirement pay, the statutory

period of limitations governing suits in the Court of

Claims being 6 years:

' Should the court décline to exercis ‘jurisdiction on the

grouftd that the cause of action accrued at the time of the

decision of the initia! board, the retiring beard (or at the

time of a denial of an officer’s request ‘for a retiring

board evaluation’, and is barred because more than 6

years had elapsed from the time of that decision, or

should the court entertain jurisdiction of these claims

‘a! on the ground that they were not ripe for

court «action until the judicial remedies) within the

military establishment were exhausted, or

(>: on the ground that the correction board's

arbitrary denial of the new statutory remedy con-

stituted. a cause ‘of action for eonsideration by the: .

court, or v ee.

(ce: on the ground that the violation of due process

by the correction board, depriving the officers of their

new statutory remedy, constituted a cause of action

for consideration by the court, or ;

5

(d) on‘the ground that the administrative attinn.

was. not final until the new evidence which came into

existence subsequent to the initial board decision was

eonsidered and acted upon?

— (2v@When ‘the Court of Claims, on January 18, 1961,

after 7 years of litigation of the issue of limitations, in

‘at least 30 cases, unanimously held that the cause of ac-

tiori for disability retirerfient pay accrued upon the de-

cision of the correction board and not upen previous de-

cisions of either a retiring board or a disability review

board, and in reliance upon the decisicn of the Court of

Claimis, disabled officers filed or prosecuted claims at sub-

_ stantial expense, was not the Court’of Claims precluded,

by the doctrine of stare decisis, from completely revers-

ing itself cn April 4, 1962, and thereafter summarily

dismissing the petitions filed or prosecuted on the faith

of the cou¥t’s-previous decision? . =

(3) When military disability. retirement pay is’ pay-

able, by statute, in monthly installments and when mili-

-- tary or other governmental pay, payable in monthly or

other peviodiec installments, has yenerally been held, by

the Court of Claims. and this Court, to be a continuing

obligation giving rise to a new. cause of action, for the

purpose of the statute of limitations, whenever an install-

‘ment became due, was there any justification for the

Court of Claims to have departed from’ this feneral

rule and to have deprived the disabled officers of their

entire lifetime annuity instead of the pertion which had

accrued niore than six years prior to the filing of their

~ petitions?

STATUTES INVOLVED.

28 U.S.C. $2501 (Supp. 1963), Statute of Limita-

tions tor the Court. of Claims as amended Sept. 3, 1954, -

68 Stat. 1246, Appendix, pg. 25.

6

2. 10 U.S.C. £456 (1946), the Act of April 3, 1939,

53 Stat. 557, conferring disability retirement benefits

upon nen-Regular Army officers, Appendix, pg. 25.

3. 10 U.S.C. § 961-965 (1952), R. S. ¢ 1246-1250, pro-

viding for Army retiring boards, Appendix, pgs. 25-26.

-.” 4.38 U.S.C. § 693i (1946), Sec. 302 of the Servicemen’s

Readjustment Act of June 22, 1944, 5&8 Stat. 284, 287,

now 19 U.S.C. $1554, providing for disability review

boards in the military services, Appendix, pg. 27. ‘

5. 5 U.S.C. $191a (1954), ‘the Act of Oct..25, 1951, 65

Stat. 655, now 10 U.S.C. 1552, providing for’ boards for

the correction of military records, Appendix, pg. 28.

“6. 10 U.S.C. $861 (1952), R. S. § 1268, providing for

military officers’ pay in monthly installments, Appendix,

pg. 29.

7. 38 U.S.C. Sec. 693h (1946), Sec. 301 of the Service-

men’s Readjustment Act of June 22, 1944, 58 Stat. 286,

now 10 U.S.C. See. 1553, providing for discharge review

boards in the military services, Appendix, pg. 29.

STATEMENT

The petitioners, officers of the non-Regular components

of the Army of the United States. were seriously inca-

pacitated in the military service.*

’ 2 Hellner sustained severe head, spinal and internal injuries in a

staff car accident and was hospitalized in the service for 27 months

(Hellner R 1. 3. 4. 43-44). Kobbins was the victim of a notoriously

defective yellow fever serum, administered by the Army, which

caused a serions liver: disease, portal cirrhosis, and his death

(Robbins R 1-4. 6, 16). Ramirez incurred arterial hypertension

(Ramirez R 1, 2. 5). Darsx sustained an eeyvravated pilonidal cyst.

hypertrophic s thritis and bilateral inguinal herniae (Davis R 2. 3.

94). Walsh suffered a traumatic piralysis of the ulnar nerve and

atrophy of the: right arm, hypertensive vascular disease, multiple

strictures and chronic severe prostatitis (Walsh R 2). Hervzoy sus-

tained a chronic peptic ulcer. severe impairment of hearing, mod

erate arthritis and prostatic infection (Herzey R 2-5. 6,9. 31-36)

Tutton became almost totally deaf because of pressure injuries .to

7

By reason of their disabilities, they sued in the United

States Court of Claims to recover retirement pay under

the Act of April 3, 1939, 53 Stat. 557, 10 U.S.C. § 456

(1946), Appendix, pg. 25), which Congress had passed

as an inducement to them, ‘as civilians, to interrupt the

pursuit of their occupations and professions for service

in the defense of the United States.

The Court of Claims has exclusive jurisdiction, among

the federal courts (28 U.S.C. Sees. 1491, 1346(d) (2+),

to render judgment for disability retirement pay under

the Act of April 3, 1939. In ihe cases at bar, however, it

_ declined to exercise jurisdiction on the ground that the pe-

titions were filed more than six years (the period of

limitation under 28 U.S.C. § 2501, Appendix, pg. 25)

-after the adverse decision of the initial statutory board,

the retiring board, although within six years of the de-

cisions of higher boards esta.lished by Congress to consid-

er these claims. the disability review board (38 U.S.C. Sec.

693i (1946) Appendix, pg. 27’ and the board for the

correction of military records (5 U.S.C. See. 19la (1954)

Appendix, pg. 28).

Under the 1939 and related s.atutes, officers were en-

titled to disability retirement pay if they were permanent-

ly incapacitated for. active service by injury or disease

incurred in line of duty. To determine these facts, Con-

gress had established, within the military services, a hier-

‘archy of three boards with judicial powers. The initial

board, the retiring board, had been established long prior

to.World War II (10 U.S.C. Secs. 961-965 (1952), R. S.

Sees. 1246-1250, Appendix pgs. 25-26. Because of wide-

his ears in high altitude flying (Tutton R 2. 4, 9, 10). Bagnell in-

curred heart disease (Bagnell R 5, 35). Due received a deep bac-

terial infection which caused diseases of the eye Ciritis, iridocycli-

tis and uveitis), prostatitis, arthritis and hepatitis. He was hos-

pitalized in the Army approximately 19 months (Dye R 2, 6).

Swartz sustained a spinal injury, a herniated nucleus pulposus

(Swartz R 4, 10).

8-

spread complaints of illegal deprivation of the rights of

non-Regular officers (See Hearings on H. Res. 141 and H.

Res. 447, 80th Congress, before Legal Subcommittee of.

Armed Services Committee, House of Representatives,

1948, hereinafter called “1948 Congressional Hearings,”

pg. 171.) the: disability review board, sometimes callai

the-retiring review board, was.created in 1944 (Sec. 302

of the Servicemen’s Readjustment Act of June 22, 1944,

the “G.I. Bill of Rigtts,” 58 Stat. 287, 38 U.S.C. Sec.

693i (1946), now 10 U.S.C. Sec. 1554, . Appendix, pg.

27). Finally, to correct and remove these and other -

“errors and injustices,” in the language of the statute,

the board for the correction of military records was

established by the Legislative Reorganization Act of 1946,

as amended by the Act of October 25, 1951, 65 Stat. 655, |

5 U.S.C. Sec. 191a (1954), now 10 U.S.C. Set. 1552, Ap-

pendix, pg. 28. This was the final board. It consid-

ered applications only after a!l other administrative reme-

dies were exhausted (Army Regulation 15-185, 15 July

1955. Par. 8). The decision of. each of the boards was

subject to the approval or disapproval of the Secretaries

of the services.

Congress provided liberal periods of time for military

personnel to apply to these new boards. Applications to

- the disability review board could be filed within 15 years

after the date of the officer’s release from active service or

from the effective date of the act, June 22, 1944, which-

___ever was later (38 U.S.C. See. 693i. (1946), Appendix,

pg. 27). Presentation of claims to the correction board

was authorized up to 10 years after the Act of October

95. 1951, or 3 years from claimant’s discovery of his

claim, whichever was. later (5 U.S.C. Sec. 191a (1954),

Appendix, pg. 28).

Prior to their release or shortly thereafter, each of the

petitioners, with the exception of Dye and Swartz, had

appeared before a retiring board whose findings were

?

9

adverse, either on the ground that he was not permanently

incapacitated for active service (Hellner R 3, 1948; Davis

R 24, 1945; Walsh R 8, 1946; Herzog R 2, 1948; Tutton

R 3, 1946;) or that, if he were incapacitated, the dis-

ability had not been incurred in line of duty ‘Robbins R

4, 1946; Ramirez R 5; 1947; Bagnell R 3, 34-35, 1945;

Davis R 24, 1945). The requests of Dye and Swartz for

a retiring board evaluation were denied by their com-

manding officers on ‘the ground that they were not per- |

manently incapacitated for active service (Dye R 1, 1947;

Swartz R 3, 1948).

The decisions of the retiring boards were shown to be

erroneous by substantial evidence which subsequently

came into existence. In some cases, disabilities did not

improve as boards expected and were found to be per- -

manent (Hellner R 17-18, 20, 22, 39, 41; Walsh R 4-5, .

25, 36). Diagnoses were proven to have been wrong by

discovery of the cause of disability during surgery ( Her-

zog R 7, 47-49, 71; Swartz R 28, Supp. R 14; Robbins R

5-6) or by the lapse of time and additional medical evalu-

ation (Bagnell R 4, 37-39; Davis R 30, 35; Tutton R 5,

9; Herzog R 7, 47-49,.71; Robbins R.7, 16, 17, 29, 37;

Dye R 26-27, 511. New evidence, obtained by civilian

counsel: demonstrated board findings to have been plainly ©

erroneous (Ramirez R 6, 22, 27). ia

It was precisely because of such errors made during

the hasty demobilization and physical evaluation of mil-

lions of enlisted men and officers: after World War II and

because’ of the repeated charges of discrimination and

willful violation of the rights of non-Regular officers that

Congress, during the period 1944-1951, established the |

new boards to which the disabled officers could apply for

relief.’ oe

+1948 Congressional Hearjngs, supra, saree 5-12, 72, 85, 90, 117,

120-121, 133, 143, 161-162, 168-169, 176, 206, 263, 289, 296-304,

403; Report of Investization of Physical Disability Retirement of

10.

Some of the petitioners filed claims, where appropri-

ate, with the disability review board and, after denial, .

with the correction board (Robbins R 7; Ramirez R 6;

Davis R 4; Tutton R 4, 19; Bagnell R 3, 40). The others,

whose claims were not cognizable by the disability review

board, applied directly to the correction board (Heliner

R 11; Walsh R 3; Herzog R.7, 46, 47; Dy R 5; Swartz

R 4). The claims were presented within the time per-

mitted by statute.

All petitioners filed suit in the Court of Claims within

6 years, the limitations period for that court (28 U.S.C.

Sec, 2501 (Supp. 1963), Appendix, pg. 29). The

court dismissed the petitions and overruled applications

for rehearings on the basis of its decisions in Lipp, Fried-

man, Executriz, Robinsen and Merriott, supra.’ In these

cases the court held that the claim accrued for action

__in the court at the time of the initial retiring board de-

cision or of the denial of a request for a retiring board

evaluation; which had taken place prior to the 6 year

period, and not at the time of the decision of the final -

board. the correction board, notwithstanding the following

facts alleged by the petitioners:

(1) Thevcorrection board had before it substantial evi-

dence which had come into existence subsequent to the

- initial decision and which cleariy showed the decision was

erroneous or premature (Hellner R 17-18, 26, 22, 39, 41;

Robbins R 5-6; 16, 17, 29, 37; Herzog R 7, 47-49, 71;

Swartz R 2, &, Supp. R 14; Bagnell R' 4, 37-39, 50, 59;

Davis R 30, 35; Tutton R 5, 9; Dye R 26-27, 51; Ramirez

R 6, 22, 27). aa

Army, Navy and Marine Corps, Lega! Subcommittee. H. Comm. on

Armed Serv. es. 80th Congress, pgs. 6021, 6032-34; S. Report No

‘1081, 8ist Cong.. first session, S. Armed Services Comm:: Hearings

before S. Comm. on Armed Services re H.R. 4767, 81st Cong.. pe. dl. ©

* Hellner R 33, 68: Robbins R ox 45: Ramirez R-34, 45. Davis

R 42, 53: Walsh R 34, 41: Herzog R 68, 73; Tutton R 29; Bagnell

" R.57,62; Swartz R 25, 30: Dye, R56. <

-

(2) The decisions of the yetiring boards were, in some

cases, reversed by subsequent board action and, in con-_

templation of law, never existed (Davis R 23, 31, 47;

Tutton R 4-6, 20-21; Bagnell R 3).

(3) The retiring board decision was tentative, not

final, because the board, not certain that the officer’s phys-

ical condition had stabilized, provided for a future re-

“evaluation (Walsh R 3, 20, 35). - ‘

(4) The decision of the retiring board was fatally de-

fective by reason of fundamental procedural irregularities .

(Hellner R 3, 4, 38; see -Davis R 29-31, 35, 47).

(5) The proceedings of the final board were so violg-

tive of due process that the petitioners were deprived of

the remedy which Congress had given them to: overcome

the previous erroneous or arbitrary action. This unlaw-

ful deprivation of their siatutory remedy constituted an

independent cause of action which the court’ should re-

view. These due process violations: consisted of:

(a) Deciding’ the claims not upon evidence before the

board, but upen ex parte, advisory opinions of the Surgeon

General which were contrary to the evidence, violative of |

the regulations and which the petitioners were never per-

mitted to examine, comment upon or refute | Hellner R

99° 41-42: Walsh R 36: Bagnell R 5, 40-41, 57: Dye R

6, 8-10, 28).

(b! Denying the petitioners a hearing in violation of

the regulations governing’ the board | Heliner R 3; Rob-

bins R 7: Ramirez R 7; Walsh R 6: Bagnell R 5, 41-46°.

‘e) Abdicating to the military the board's statutery

judicial function as a board eemposed solely of civilians

(Heliner R 42: Ramirez R 30; Walsh R 36; Herzog R 8. .

31, 57-59; Dye R 31-32).

(di Deciding the claims without the participation of

the Secretary, mandatory under the statute 15 U.S.Cs

Sec. 19la (1954), Appendix. ‘pg. 28).

.

Dewan, *-

fa,

12

(e) Completely ignoring regulations which required

findings favorable to the petitioners and acting béyond and.

outside of the law as if the board had complete, uncon-

trolled -diseretion and was not bound by regulations or

law (Robbins R 32, 38-39). a”

(f) Failing to obtain material evidence which the pe-

titioner specifically requested and deciding: the claim with-

out advising the petitioner that it had not obtained or con-

sidered the evidence (Hellner R 18, 23, 42). ;

The Court of Claims held that none of the aforesaid

facts either deprived the retiring board decision of final-

ity" or showed that the administrative consideration of |

the claim was not final until the exhaustion of all board

reviews and de novo considerations or that the correction

board action, however arbitrary on the evidence or viola-

tive of due process in its procedures, constituted a cause

for action by the court.’

‘In Friedman, Evrecutric, sapra. the court spelled out, at ms

384. “the rules we sha!! now follow”. One of the rules emphasized

by the court. was that the cause of action would nof accrue if the

decision of the retiring: board was not “final” and that the decision

was not final when (page 396): 3

“(i) the claimant has been misled, (ii) the board's decision is

tentative and invites reopening. (iii) the armed service itself

reopens the case. or (iv) there are other circumstances depriv-

ing the action or non-action of finality.”

The court, nevertheless. held in the cases at bar, tha: the retiring

board decision was final. even though it was tentative: or when

subsequent to the retiring board decision. substantial new evidence

ovcurred which showed the decision to be erroneous, which had

never been considered by the retiring board and which was pre-_

sented to and acted upon, by the correction board: or when the re-

tiring board decision was voided by a reversal of a review board :

or when it was void by reason of « denial of due process.

es

"No other interpretation of the court's rulings is possible inas-

much as the court denied every request of the petitioners to pre-

sent the aforesaid facts to the court either in -the form of amend-

ment to the petitions which had been framed on the basis of

Knight (Hellner R 34, 68, Robbins R 29, 48, 45; Davis R 43, 53;

ae ee oe -

In Knight v. U.S., 152 Ct.Ci. 298, decided on Jan. 18,

1961, a unanimous court (Madden J. who delivered the

- opinion, Durfee J., Laramore J., Whitaker J., and Jones

C.J.), after seven years of litigation of the issue of limi-

tations in over thirty disability retirement cases (cited

‘in Friedman, Executrizx, supra, fn. 8, pg. 388), held that

the 6. year period began to run at the time of the decision

of the final board, the board for correction of military

records, notwithstanding earlier decisions of retiring and

review boards. After such full and prolonged consideration

of the issue, it was felt that the question had been finally

decided and laid to rest. In reliance on the ‘decision, many

of the petitioners expanded substantial sums of money in

either filing or prosecuting their claims (Petitions filed in

reliance on Knidht and prior to. Lipp: Robbins R 1; Ramirez

“R11: Walsh.R 1; Bagnell.R 1; Dye R 1. Evidence collected

for trial in reliance on Knight and prior to Lipp: Ramirez

R 21, 35-36. Trials conducted at great expense in reliance

on Knight and prior to Lipp: Hellner R 16, trials at

Tampa, Dallas, San Antonio and Washington; Davis R 21,

at Philadelphia and Los Angeles).

It was, therefore, a matter of great surprise and con-

sternation to the petitioners to find that they were re-

jected by the only impartial tribunal with jurisdiction to

. award disability retirement pay about 14 months after

. they had been assured of their day in court.

Walsh R 29. 37): or in the form of findings by commissioners upon

evidence already presented to them (Hellner R 16-17, 18) 35: Davis

R 43-44) or to be presented to them (Ramirez Ro 25, 30, 37:

Herzog R 71: Dye R 49; Swartz R31). After the court denied all

requests of petitioners to present evidence of the aforesaid facts,

the petitioners asked the court to clarify its rulings and state the

grounds thereof. but it again refused (Hellner R 48. 68; Robbins R

_42<° Ramirez R 30, 37; Walsh R 29, 37: Herzoy R71: Dye R49),

presumably because the court believed the facts immaterial, as it

stated iy Due, Appendix pe. 32

14

REASONS FOR GRANTING. WRIT

The right to judicial review of military decisions is of

importance to a large segment of our popilation: There

- dre 23 million veterans and, with universal military ser-

vice, the military now touches the life of almost every

male citizen. Members of the armed services have found

_ the administrative remedies provided by Congress un- ~

' availing and have turned increasingly to the courts, with

claims such as those at bar or involving the legality of

discharge from the service (Meador, “Judicial Determina-

tion of Military Status,” 72 Yale L.J. 1294, 1963).

The question, therefore, as to when the federal courts

should exercise jurisdiction over military laims is of in-

creasing importance. The decisions ef the Court of Claims .

that the claim becomes ripe for cour* action, in the midst

of the administrative proceedings is in conflict not only:

with the principles ‘announced by this Court in Gusick v.

Schilder, 340 U.S. 128, and U.S. v. Sing Tuck, 194 US.

161, but with decisions of several circuit courts of appeal

and -federal- district courts (Michaelson v. Herren, 242

F.2d 693 (1957).and Burns v. McCrary, 229 F.2d 286 in

the Second Circuit; Reed v. Franke, 297 F.2d 171 (1961)

in’the Fourth Cireuit; Anderson v. MacKenzie, 306 F.2d

2948 (1962) in the Ninth Cireuit; Hunter v. Beets, .180

F.2d 101 (1950),.in the Tenth Circuit; Bolger v. Mar- |

shall, 193 F.2d 37 (1957). in the District of Columbia

Circuit: Randolph v. U.S., 69 F. Supp. 156 41946), Dis

trict Court of the S. District of -Texas, ‘cited with ap-

proval in Uhley v. U.S., 128 F. Supp. 674, 129 Ct.Cl. 608

(1954): Hooper v. Hartman, 163 F. Supp. 437 (1958),

District Court of the S. Dist. of California).

Thus, Michaelson v. Herren, Reed v. Franke and Bolger

‘y. Marshall, supra, held that the federal court wil] not

exercise jurisdiction to determine the validity of an un-

satisfactory military discharge when the plaintiff had not

exhausted his remedy before the discharge review board

15

(38 U.S.C. Sec. 698h (1946), Appendix, pg. 29), a

twin of the disability review board (38 U.S.C. Sec. 693i

(1946), Appendix, pg. 27). These two boards. were

created: by consecutive sections of the same statute, Sec-.

tions 361 and 302 of the Servicemen’s Readjustment Act

of June 22, 1944, the first to review discharges, the sec-

ond to review releases for disability without retirement

benefits. The statutory provisions as to each board are

essentially the same (Appendix, pgs. 27,29) and the

principles applicable to court review are the. same (see

Meador, Judicial Determinations of Military. Status, 72

Yale L.J. 1294, (1963)).

Reed v. Franke, supra, held that the correction —

remedy should be exhausted before the court exercises

jurisdiction on the yalidity of a discharge. Randolph v.

US., supra, held similarly with re: pect to disability re-

: tirement.

Anderson v. MacKenzie, supra, held that’ the court -

should not exercise jurisdiction over a discharge until a

military field board had reviewed the matter. In Hooper

v. Hartman, supra, it was held that jurisdiction over dis-

“missal should not be entertained prior to’ exhaustion of

the ‘plairtiff’s remedy in the U.S. Court of Military. Ap-

peals. Burns v. McCrary, supra, held that a suit to enjoin

2 reduction in grade of a civisian, non-veteran employe

of the Army should not be entertained until an appeal to

the Secretary of the Army was exhausted.

The requirement of exhaustion of military remedies

was likewise applied in Hunter v. Beets and Gusick v.

Schilder, supra, which -held that, in habeas corpus pro-

ceedings, the courts should not exercise jurisdiction until

all administrative remedies in the military departments

were utilized, including new remedies enacted after court

martial conviction and even after the p vition for the writ

had been filed. ;

(16

The only reported decision not conflicting with those of

the Court of-Claims is Ogden v. Zuchert, 298 F.2d 312

11961; in the District of Columbia Circuit which reversed ©

the decision of the district court that the correction board

remedy should be exhausted in a disability retirement

claim.

‘The rationale of the decisions requiring exhaustion of

all remedies within the military establishment is stated

by this Court in"Gusick v. Schilder, supra, at pg. 182: —

“If an available procedure has not been employed

- to rectify the alleged error which the federal court

is asked to correct, any interference by. a ‘federal

court may be’wholly needless. The procedure estab-

lished to police the errors of the tribunal whose

judgment ‘is challenged may be adequate for the oc-

easion. If it is, any: friction between the federal court

and -the military or state tribunal is saved. That

pelicy is as well served’ whether the remedy which is

available vas existent at the time resort was made to

the fede... courts or was subsequently created, as

indeed is implicit in cases from a federal court whose

review we denied pending exhaustion of a newly cre-

ated state remedy.” .

The foregoing decisions merely apply the general rule

that when administrative review is provided, it, as well

as the initial remedy, must be exhausted ‘Davis, Admin-

istrative Law, 1951, pg. 639).

The Court of: Claims decisions conflict not only with

_ those of other federal courts, but with the court’s own

decision in Knight v.. U.S., supra, and with statements

made by it in previous decisions (Eicks. v. U.S.,-172 F. .

Supp. 445, 145 Ct. Cl. 522 (1959); Prince v, U.S., 119. F.

Supp. 421, 127 Ct. Ch 612 (1954); Friedman v. U.S.,

158 F. Supp. 364, 141 €t. Ct. 239 (1958); Rosnick v.

U.S., 182 F. Supp. 478, 182 Ct. Cl.1, 6 (1955+.

Pe

~J

eS

The supervisory powers of. this Court should be exer-

cised to correct the extraordinary dep2rture of the Court.

of Claims from the doctrine of stare decisis, aptly de-

fined as the “protection of generated expectations” ‘ Har-

lan, J., in Glidden v. Zdanok 370 U.S. 530, 543), and

generally. considered inflexihle in matters of jurisdiction.

The reversal of Knight by Lipp constitutes a direct con-

flict with Marshall v. B & O R.R. Co., 16 How. WU.)

314, (1853), in which this Court said ‘at page 324):

“There are no cases, where an. adherence to the

maxim of ‘stare decisis’ is so absolutely necessary to

the peace of society, as those which affett retroactive-

ly the jurisdiction. of the courts: For this reason

alone, even if the court were now of the opinion that ©

the principles affirmed in the case just mentioned

_ and that of the Bank of Deveaux, 5 Cranch’61, were

- not founded‘on ‘right reason, we should not be justi-

fied in overruling them. The practice founded on

“those decisions, to say the least, injures or wrongs

no man’: while their reversal could ‘not fail to work

wrong or injury to many.”

Equally unusual is the court's departure from the gen-

eral doctrine of continuing obligations under which peri-

odie installments of salary or other obligations constitute

separate causes of action. Disability retirement pay is,

by statute, payable monthly (1°-U.S.C. Sec. 861] $1952...

R. S. Sec. 1268, Appendix, pg., 291, but the court held,

contrary, to its own decisions (Hermann v. Um, Ca¥.

Supp. 830, 113 Ct. Cl. 54 (1949); Sayers v. U.S., 102 Ct.

C). 791 (1945); Morris. v. U.S., Ct. Cl. 324-61, Nov. Var

1963, and the decisions of this Court (U.S. Vv. Ellsworth,

101 U.S. 70: U.S. v. Watson, 130 U.S. 80; LSo-v. Moser,

266 U.S. 236) that it is not a continuing obligation, Com-

menting upon this holding, Madden, J., in Odell v. Ca

139 F. Supp. 749, 751, 134 Ct. Cl. 634, 642 11956). stated:

“In recent years we have, in a few cases, departed

from this orthodox and ‘correct rule. The results, in

P.2 ‘

i

y

18

some cases strikingly unjust, should have put us on

our guard, but did not. In Hunter Louis’ Girault Vv.

.S.. No, 50474, decided November 8, 1955, we found

that the action of the Secretary of War was ‘clearly

contrary to law,’ yet we allowed his illegal action to

deprive a soldier of his legal rights for the rest of

his life. Such an unworthy end is not’ a reason for

inventing a novel and unorthodox legal doctrine .. .

I can imagine no reason why soldiers should be

selected as sacrifical offerings ‘to nourish a novel legal

doctrine.” ;

Since the Court: of Claims did not state the grounds

of its rulings in the casés at bar and refused to clarify

them ‘supra, fn. 7, pgs. 12-13), the court decided, either

that the petitioners’ allegations (supra, pgs. 11-12) were -

insufficient to demonstrate a lack of due.process in the

military tribunals or if they were sufficient, a violation

of due process would not constitute a new cause of action

for review by the court. —

If the court decided that the facts alleged did not con-

stitute a violation of due’ process, the decisions would con-

flict direetly with Gonzales vy. United States, 348 U.S. 407,

in which this Court stated that an ex parte, advisory opin-

ion obtained from the Department of Justice by a draft

appea! board on the question of exemption from. military

service violated “underlying concepts of procedural regu-

larity and ‘basic fair play.” (See also Sec. 7 of the Ad-.

ministrative Procedure Act, 5 U.S.C. 1006.) The court’s

decisions would also conflict with Vitarelli v. Seaton, 359

U.S. 535 (1959) in which this Court, in considering the

validity of a discharge by the Department of Interior,

held the department was guilty of a fatal procedural

irreguiarity when it did not abide by its own regulations,

citing Service v. Dulles, 354 U.S. 368.

If.the court decided that a violation of due process,

which deprived the petitioners of their correction board

rengédy, did not constitute a cause of action for review by

19

the court, the decisions were directly contrary to the intent

of Congress that the court should review such correction

board rulings, so clearly demonstrated in Friedman v.

U.S., 158 F. Supp. 364, 141 Ct. Cl. 239, 1958.

.

The decisions of the court in the cases at bar (and in

others which have suffered the same fate") constitute a

gross injustice to perhaps our most deserving . citizens,.

officers disabled in the military service. The statute en-

acted by Congress to induce them to leave their occupa-

tions and professions to serve in the defense of their

country has been completely subverted. Their right to

disability retirement pay, conferred by the statute, has -

arbitrarily been denied them. The additional remedies

within the military services enacted by Congress to enable

* them to realize their right have been equally unavailing.

Because they pursued these remedies within the generous

periods of time _provided by’ Congress, they have been

penalized by losing the opportunity to present their claims

to an impartial tribunal. |

Under the Knight decision all disabled officers were on

an equal froting with respect to their right to present

their claims to the Court of Claims. The Lipp and sub-

sequent decisions created the following serious and unfair

inequalities with respect to this right, so important to thé

officers because of the negligible prospects of success be-

fore the military boards: |

(1) An officer, released in 1946 without a retiring

byard evaluation, who applied to the correction board as

late as October 25, 1961, could file a timely petition in the —

court at any time within 6 years after the correction

board ruled on his claim. He could file his petition in |

1967, or even later if the board ruled subsequent to 1961 -

‘(Harper v. U.S., 310 F.2d 405, 1962). On the other hand,

‘In 7*ywe, the court stated. referring to orders such as those in

the instant cases, “There are @ large number of comparable orders”

(Fn. 1, Appendix, pg. 82).

20

an officer released in 1946 with a retiring board evalua-

tion could file no later than 1952. The first officer had 21

or more years after release; the other, 6 years (Hellner

et al). Seer | .

During the mass demobilization of 1944-1946, whether

or not an officer was sent before a retiring board depended

upon so many. uncertain, variable and unpredictable fac-

tors that it is unreasonable and unjust to make such an

event the determinant of the life of this right of action.

Washe in or near a hospital that had a retiring board; .

how busy was the board at that particular hospital and

how long would it take to process him; how anxiov’ he

was to go home; how competent were the medical ofliver-

who examined him at separation centers or hospitals and

who decided whether he should be evaluated by a retiring

board; how busy were they; how long were the “produc- ~

tion lines” of officers awaiting separation; how anxious

were the doctors and retiring board personnel to go home;

how rapidly were they being demobilized ?:

The Court reasoned that the individual who had been

ordered before a retiring board ordinarily had enough |

notice of potential entitlement to disability retirement to

be required to sue, within 6 years, whereas the one who

had not been sent to a retiring board had no such notice. |

It is apparent, ‘however, that the individual who was in-

formed, after the examinations and studies required in

processing him to.a retiring board, that. he was not really

incapacitateu, was more thoroughly misled into believing

that he had no incapacity, in spite of his symptoms, than

the one who was not examined at all. The latter was

more likely, after release, to consult a private physician or

the Veterans Administration to ascertain what was wrong

than was the former, who had been given a clean bill

of health by an apparently thorough: checkup, including

hospitalization, disposition board and retiring board pro-

_ ceedings.

21

(2) The Court held that if the retiring board decision,

was “tentative” because it was not certain of the perman-

ency of the disability and it recommended a subsequent

physical reevaluation, its decision was not final and the

statute of limitations did not begin to run (Friedman,

Executrix, supra, at pg. 391). In many cases the re-

tiring boards knew that their decisions were tentative be-

éause not enough time had elapsed’ to ascertain the per-

‘manence of the disability, but they failed, for various

_ reasons, to recommend a reevaluation. They may not

have been ‘aware of the procedure (There were 99 retiring

boards in the Army, many of whom were inexperienced,

1948 Congressional Hearings, supra, P&S. 10, 12.). The

Boards were prohibited from recommending, a reevalua-

tion at a date later than 6 months (War Dept. Technical

Manual, TM 12-245, 1 October 1945, Par 16, pg. 22)

which, in many cases, was too short a time for the dis-

ability to stabilize. Futherrore, many individuals could

not have been expected to return toan Army hospital in

so short a time after reentering civilian life.

(3) The court held that when the armed services itself

recognized a mistake in a previous board evaluation and

reopened the matter, the previous decision was not final -

(Friedman, Executriz, supra, at Pe. 391; Schiffman v.

U.S., 319 F.2d 886, decided July 12, 1963. See however,

Swartz R 27, 30, 31, 34, Supp. R 7 in which the court

refused to recognize that the service reopened the claim

even though the government admitted it had.). If, how-

ever, the same mistake was made and not initially recog-

nized by the service, but brought to its attention by the

_ claimant, and the proceedings were reopened, the statute,

nevertheless, ran from the tite of the earlier decisien ,

_ (Dye, Appendix pg. 36; Robinson v. U.S., supra, slip.

op., pg. 3).

Both claimants had been prejudiced by a mistake but

one was given more than six years to rectify the error in

court; the other was not.

22

In holding that a board did not reopen the matter

when it considered material evidence which . occurred

subsequent to the: retiring board decision, the court was

in conflict with the rationale of this Court in Roberston *

-y. Chambers, 341 U.S. 37 (1951). It was held, in Robert-

son, that such evidence was competent for consideration

by the disability review board. The Court reasoned that

the evidence was important to arrive at a correct deter- .

mination of the nature and extent of the officer’s dis-

ability at the time of his release; that Congress had given

the review board the power to consider the claims de .

novo (not merely to reverse for error); and that when

Congress allowed 15 years after a retiring board decision

‘for the consideration of the matter by the review board, |

the intervening. evidence’ was obviously material. The

Solicitor General had argued in his brief that the evidence

was of prime importance because of the- Government’s

long, contingent liability. Robertson, in effect, decided

that the review board was actually given the power to

reopen the matter so as to rule upon the subsequent evi-

dence. The same principle would apply to the ‘correction

board which was also authorized to consider these mat-

ters after considerable periods of time and was given the

power.to try them de novo.

For the foregoing reasons, this petition for writs of

certiorari should be granted.

- Respec‘rully submitted,

PAUL R. HARMEL

: Attorneu for Petitioners ,

Of Counsel:

GEIGER, HARMEL & SCHUCHAT

.

23

APPENDIX

Order of the court granting defendant’s motion to

dismiss plaintiff’s petition and dismissing petition.

-IN THE UNITED STATES COURT OF CLAIMS

| No. 85-61

LISANDRO RAMIREZ —

WV,

- THE UNITED STATES

ORDER

This case comes before the court on defendant’s mo-

tion to dismiss the petition filed-on May. 28, 1962. Upon

consideration thereof, together with thé opposition there-

to, oral argument of counsel and the’ briefs of the parties,

it is concluded, on the basis of Lipp v. United States, No.

384-58, decided April 4, 1962, and Friedman, Executriz

:. United States, No. 377-60, decided November 7, 1962,

cert. denied May 27, 1963, in Lipp and Friedman, 373

U.S. 932, that plaintiff's alleged claim is barred by the

statute of limitations, 28 U.S.C. $ 2001, and

IT-IS ORDERED this 15th day of November, 1963,

that defendant's motion be and the same is granted, and

plaintiff's petition is dismissed.

BY THE COURT,

s Marvin Jones

MARVIN JONES,

Chief Judge.

24

Order of the court denying plaintiff's application

for rehearing.

IN THE UNITED STATES COURT OF CLAIMS

No. 85-61

LISANDRO RAMIREZ

(ae

THE UNITED STATES

ORDER

This case comes before the court on plaintiff's applica-

tion for rehearing of defendant’s motion to dismiss under

Rule 68 of the Rules of this court. Upon consideration

therecf,- together with the opposition thereto, and. on the

‘basis of Merriott v. United States, No. 374-61, and Rub-

inson v. United States, No. 433-59, both decided Novem-

vey 15, 1963, and similar cases, t*

IT IS ORDERED this fifteenth day of May. 1964, that »

plaintiff's said: application be and the same is denied.

BY THE COURT,

/s’ Marvin Jones *

MARVIN JONES,

Chief Judge.

>

: a5 _ ; —

oy U.S.C. § 2501 (Supp. 1965)

TIME FOR FILING SUIT

Every claim of which the Court of Claims has juris-

diction shall be barred unless the petition thereon is

filed within six years after such claim first accrues ‘as

amended Sept. 3, 1954, c. 1263, § 52. 6S Svat. 1246!.

10 U.S.C. See. 456 (1946), 52 Stat. 357

The Act of April 5, 1%5%

AN ACT

To provide more effectively “for the national defense

by carrying out the recommendations of -the President

in his message of January 12. 1939, to-the Congress.

Provided further. That all officers. warrant officers. and

enlisted men of the Army of the United States. other than

the officers and enlisted men of the Regular Army. if

called or qrdered into the “active military service by the

Federal Government. for extended military service in ex-

cess of thirty days, and whe suffer disability or death in

line of duty from disease oy injury while so employed

shall be deemed to have been in the active military service

during’ such period and shall be in all respects entitled

to receive the same pensions, compensation, retirement

pay, and hospital henefits as are now Or may hereafter be

provided by law or regulation for officers and entisted men

of corresponding grades-and length of service of the Regu-

lar Army. ates

w USC. Secs. 11-065 ikea

R. S. Sec&. triteliw

RETIRING BOARDS

£961 Composition of board. =

‘The Sécretary of the Army, under the direction of the

President. shall, from time to time, assemble an Army

26

retiring board, consisting of not more than nine nor less

than five officers, two-fifths of whom shall be selected

from the Medical Corps. The board, excepting the officers

selected from the Medical Corps. shall be composed, as

far as may be, of seniors in‘rank to the officer whose dis-

ability is inquired ef. (R. 5. $ 1246: July 26, 1947, ch.

343. title II, § 205 (a!, 61 Stat. 501.)

£962. Oath of members of board.

The members of said board shall be sworn in every

. pase to discharge their duties honestly’ and impartially.

(R. S. § 1247.)

£ 963. Inquiry into and determination of facis.

A retiring board may inquire into and determine the

facts touching the nature and occasion of the disability

of any officer who appears to be incapable. of perform-

ing the duties of his office. and shall have such powers

of a court-martial and of a court of inquiry as may be

necessary for that purpose. (R. S. £ 1248.)

£964. Finding cause of incapacity.

When the board finds an officer incapacitated for ac-

tive service,-it shall also find and report the cause which,

in its judgment, has produced his incapacity, and wheth-

er, such cause is an incident of service. (R: S. § 1249.)

£965. Revision bu President.

The proceedings and decision of ‘the board shall be

transmitted to. the Secretary of the Army, and shall he.

jaid by him before the President for his approval or

disapproval and orders in the case. «R. S. $1250; July

96. 1947. ch. 343, title II, $205 ‘a!, 61 Stat. 501.)

27

38 U.S.C. See. 6931 (1946) Now 10 U.S.C. Sec. 1554

The Servicemen’s Readjustment Act of

June 22, 1944, Sec. 302, 58 Stat. 287

DISABILITY OF. REVIEW BOARD

‘a’ The Secretary of War, the Secretary of the Navy,

and the Secretary of the Treasury are authorized and. di-

rected to establish, from time to time, boards of review

composed of five commissioned officers, two of whom

shall be selected from the Medical Corps of the Army or

Navy, or from the Public Health Service, as the case may

be. It shall be the duty of any such board to review, at

the request of any officer retired or released to inactive ©

service, without pay, for physical disability pursuant te

the decision‘of a retiting board, the findings and de-

cision of such retiring board. Such review shall be based

upon all available service records relating to the officer

reguestimg such review, and such other evidence as may

be presented by such officer. Witnesses shall he permitted

io present testimony either in person or by affidavit and

the’ officer requesting review shall be allowed to appear

before such board of review in person or by counsel. In

_ carrying out its duties under this section such board of

review shall have the same’ powers as exercised by, or

vested in. the retiring board whose findings and deci-

sign are being reviewed. The proceedings and decision of

each such board of review affirming or reversing the de-

cision of the retiring board shall be transmitted to the

Secretary of War, the Secretary of the Navy, or the

Secretary of the Treasury, as the case may be, and shall

be laid by him’ before the President for his approval or-

disapproval and orders in the case. :

ibs .No request for review under this section shall be -

valid unless filed within fifteen years after the date of

retirement for disability or after the effective date of

’ this Act, whichever is the later.

ets

28

(c) As used in this section—

(1) the term “officer” means any officer subject to

the laws granting retirement for active service in the

Army, Navy, Marine Corps, or Coast Guard, or any

of their respective components, ;

(2) the term “counsel” shall have the same mean-

' ing as when used in section 301 of this Act.

5 USC. Sec. 191a (1954 )

The Act of Oct. 25, 1951, 65 Stat. 655

Now 10 U.S.C. See. 1552

BOARDS FOR. CORRECTIONS OF MILITARY

RECORDS

The Secretaries of the Army, Navy. and Air Force,

respectively, under procedures set up py them and acting

through boards of civilian officers or employees of their

" yespective Departments, are authorized to correct any ,

‘military or naval record. where in their judgment such

action is necessary to correct an error OF remove an in-

justice, and correction so made shall be final and conclu-

_ sive on ‘all officers of the Government except when pro-

cured by means of fraud: Provided, That procedures set

up by the Secretaries of the Army, Navy, and Air Force

in accordance with this subsection shall be approved by

the Secretary of Defense; Provided further, That no cor-

rective action shall be taken under this subsection unless

the request therefor be filed by claimant, his heirs at law.

or legal representatives within three years after his or

their discovery of the alleged error or injustice, or within

ten years after the date of enactment of. this section,

whichever be the later: Provided. further, That the failure

to file the request by claimant, his heirs at law, or legal

_ representative, within three years ‘after his or their dis-

covery of the alleged error or injustice may be excused by

such board of civilian officers or employees of the re-

i

29

spective Departments upon finding by it that it is in the

interest of justice to excuse such failure to file within

the prescribed time in which event action shall be taken

in the same manners as if the request had been filed with-

in the three years as prescribed herein.

10 U.S.C. $861 (1952)

R.S. § 1268

ARMY OFFICERS’ PAY

< 861. Officers to be paid monthly. ,

The sums allowed to officers for pay, rental allowances.

and subsistence shall be paid in monthly payments. (R. S.

$ 1268.) .

as U.S.C. Sec. 60h (1946):

‘Now 10 U.S.C. See. 1553

The Servicemen’s Readjustment Act of

June 22, 1914, Sec. 501, 58, Stat. 256

DISCHARGE REVIEW BOARD

The Secretary of War and the Secretary of the Navy,

‘after conference with the Administrator of Veterans’ Af- .

fairs. are authorized and directed to establish in the War

and Navy Departments, respectively, boards of review

_ composed of five members each, whose duties shall be to

review, on their own motion or upon the request of a’

former officer or enlisted man or ‘woman or, if deceased,

by the surviving spouse, next of kin, or legal representa-

tive, the type and nature of his discharge or dismissal...

except a discharge or dismissal by reason of the sentence.

of a general court marital. Such review shall be based

upon all available records of the service’ department re-

- lating to the person requesting such review, and such.

other evidence as may be presented by such person. Wit-

‘nesses shall be permitted to present testimony either in

30

person or by affidavit and the person requesting review

shall be allowed to appear before’such board in person or

by counsel: Provided, that the term “counsel” as used. in

this section shall be construed to include, among others,

accredited representatives of veterans’ organizations rec-

ognized by the ‘Veterans’ Administration under section

9200 of the Act of June 29, 1936 (Public Law Numbered

844, Seventy-fourth Congress), Such board shall have au-

thurity, except in the case of a discharge or dismissal by

reason of the sentence of a general court martial, to

change, correct, or modify any discharge or dismissal, and

to issue a new discharge in, accord with the facts pre-.

_ sented to the board. The Articles of War and the Arti-

cles for the Government of the Navy are hereby amended

to authorize the Secretary of War and the Secretary of

‘the Navy to establish such hoards of review, the findings

thereof te be final subject only to review by the Secre-

tary of War or the Secretary of the Navy, respectively :

Provided, That no request for review by such board of a |

discharge or dismissal under the provisions of this section

shall be valid unless filed within fifteen years after such -

discharge or dismissal or within fifteen years after the

effective date of this Act whichever be the later.

4

-

IN THE UNITED STATES COURT OF CLAIMS

No. 228-61 |

( Decided June 12, 1964) .

‘TANNER C. DYE

; v.

THE UNITED STATES

Paul R. Harmei for plaintiff. Geiger, Harmél & Scau-

chat of counsel. ° 2

Edgar H. Twine, ‘with whom was Assistant Attorney:

General John W. Douglas, for defendant.

Before Jones, Chief Judge, WHITAKER, LARAMORE, .

DuRFEE and DAVIS, Judges.

ON DEFENDANT'S MOTION FOR SUMMARY JULG-

MENT AND PLAINTIFE'S MOTION TO REMAND

PROCEEDINGS TO THE COMMISSIONER

PER CuRIAM: This is a military disability-retirement

pay case in which the defendant has moved for summary

judgment on the grouzd that the claim is barred by. the

6-year statute of limitations, 28 U.S.C. £2501. This

motion was referred to Trial Commissioner Marion a:

Bennett, under former Rule 37'e' (now Rule 541b!!.-

for his recommendation for. a conclusion of law. -Com-

~ missioner Bennett has submitted an opinion concluding

2

that the claim is barred by limitations, and-a recommend-

ation that the defendant’s motion be granted and the pe-

tition distuissed. Oral argument before the court has been

had, and the court has considered’ the briefs filed by the

parties, as well as the motion to remand filed by the plain-

tiff after the Commissioner submitted his opinion and

recommended conclusion. |

The court agrees with the Commissioner’s recommenda-

tion and with his opinion. Subsequent to the filing ‘on

November 12, 1963) of that. opinion and recommended

conclusion, the ‘court handed dewn a number of opinions

and orders deciding the identical or similar limitations

issues in the same way and on the same grounds. See,

e.q., Robinson Vv. United. States, Ct. Cl. No. 433-59, de-

’ eided November 15, 1963; Merriott v. United States, Ct.

Cl. No. 374-61, decided November 15, 1963; Tc itelbawm

v. United States, Ct. Cl. No. 116-63, decided Jan. 24,

1964, rehearing denied April 17, 1964 ‘orders).' The

Commissioner’s opinion is in accord with those opinions

‘and orders. The court therefore adopts his opinion, as

supplemented by the later decisions, as the basis for judg-

. ment in this case. The court has considered the factual

allegations contained in plaintiff's motion to remand to

the Commissioner but, on the basis of the cited decisions -

and the Commissioner’s opinion, holds those allegations

‘immateria: on the issue of limitations; the motion is there-

fore denied. ) :

‘The defeudant’s motion for summary judgment is

granted and the plaintiff’s motion to remand to the Cum-

missioner is denied. The petition is dismissed.

OPINION. OF COMMISSIONER

Defendant see’... summary judgment grounded on the

statute of limitations. to defeat plaintiff's claim ‘for dis-

ability retirement pay.

There are a large number of comparable orders.

330 OC ”

Plaintiff first performed military service during World

War I. From 1922 to December 22, 1940, he served in the

Missouri National Guard. On December .23, 1940, he

entered active duty as a major in the Infantry and per-

‘formed active duty until June 10, 1947, during which

period he was promoted to the rank of lieutenant colonci.

On June 10, 1947, he was released from active duty by’

reason of demobilization and on August 23. 1956, was re-

tired for longevity.

On August 1, 1946, plaintiff appeared before an Army

disposition board at the O'Reilly General Hospital, Spring-

field, Missouri. That board found plaintiff had the follow-

ing disability : “Enlarged prostrate, inflammation of left

eye with possibility of recurrence.” It recommended that

plaintiff “be returned to permanent limited duty.” -

On March 24, 1947, plaintiff appeared before a second

disposition board at Madigan Genera! Hospital, Tacoma,

Washington. That board found plaintiff was suffering

from “i |ntermittent inflammation of left eye, with pos-

sibility of recurrance, enla ‘ved and tender’ liver.” it

recommended that he “be returned to duty for general —

military service with waiver of physical defect. Jrido-

eyclitis. Hepatitis.” | te

~° On May 11, 1947, plaintiff, in a letter to the Adjutant

Gereral. requested that he bé allowed to appear before

an Army retiring board. By letter dated June 12, °1947.

the Adjutant General, by order of the Secretary of War,

informed plaintiff that his request: to appear before an

Army retiring board was denied. That letter stated in

part: . |

9 Your entire record, including your letter, has

been carefully reviewed in the War Department.

However, the latest evidence in the record reveals no

physical defect. warranting your appearance before

an Army Retiring Board. The evidence in the record

indicates that the findings of the Disposition Board

y

34

which met in your case at Madigan General Hospital,

Tacoma, Washington on 24 March 1947, are correct.

Therefore, your request is not favorably considere. .

On March 16, 1960, plaintiff filed an application with

the Army Board for Correction of Military Records re-

questing that his records be corrected to show he was

permanently incapacitated for active duty at the time of

his release on June 10, 1947. After a hearing and re-

ceipt of evidence from plaintiff, the Correction Boaro con-

cluded on May 2, 1961, that plaintiff was not permanently

incapacitated for active service at the time of his release

on June 10, (1947.

Defendant contends plaintiff's clain. accrued on June 12,

1947, when his request to appear before an Army retiring

board was refused by order of the Secretary of War. This

date was almost 14 years prior to the filing of his petition

on June 9, 1961. It is contended the claim is ‘barred by

the 6-year statute of limitations (28 U.S.C . 2501).

A claim for disability retirement accrued on final -ac-

tion of a board competent to pass on eligibility for dis-

ability retirement. Friedman v.-United States, ‘Ct. Cl.

No. 377-60, decided November 7, 1962, 310 F.2d 381, cert.

denied, 373 U.S. 932 (1963). A refusal of a request for

such a board constitutes final action. Friedman, supra,

slip op., p. 20; Lipp v. United States, Ct. Cl. No. 384-58,

decided April 4, 1962, 301 F.2d 674, ceft. denied, 373

U.S. 982 (1963). a

Plaintiff contends, however, that the denial of his re-

quest for a retiring board was erroneous and therefore

- lacked finality. It is alleged that the denial was erron-

eou- and illegal because (1) the Adjutant General said

that plaintiff's record had been carefully reviewed “in

the War Department” when, in fact, it had not been in

the Adjutant General’s possession; (2) the denial was

based on mistakes made by the March 24, 1946, Madigan

disposition board which (a) ignored plaintiff's prostatitis

35

. and arthritis that had previously been found, and con-

sidered the hepatitis nondisabling, (b) had no authority

to change plaintiff’s status for the purpose of separation

when a prior board had found him fit only for limited

service, (c) recommended waiver for plaintiff's irido-

- eyclitis and hepatitis and considered plaintiff's prostatitis

- cured by operations and ignored his symptoms of ar-

thritis, (d) ignored Army regulations that required plain-

tiff to be sent before an Army retiring board, (e) ignored

regulations that authorized waivers only for the purpose

. of permitting critically needed personnel, who couid not

qualify physically for general service, to serve on active

duty—not for the purpose of separation, (f) ignored

Army regulations that permitted waivers of minor dis-

- abilities which: were not disqualifying for full military

duty and would not progress nor become aggravated by

active military service, and (g) used waivers improperly

to deprive disabled officers of retirement benefits; and,

finally, (3) the Correctién Board accepted an ex parte

opinion about plaintiff's condition from the Surgeon Gen-

eral - 1d this opinion was full of factual and legal errors.

Urp-n the foregoing allegations as to lack of finality in

the aaministrative proceedings, plaintiff’s petition filed

July 9, 1961, seeks disability retirement pay from June

' 10, 1947, the date of reiease from active duty.

Plaintiff’s argument that the alleged errors would de-

prive the denial of finality. is grounded on the discussion

by the court on pages 12 and 13 of the F riedman ‘opinion.

At the point the court indicated that action of the initial

board considering a disability claim might be deprived

of finality under certain circumstances. ‘See, also, Fried-

man, supra, slip op., p. 21; Braun v. United States, Ct. Cl.

_ No. 68-62, decided October 11, 1963, slip op., p. 3.

Plaintiff contends the facts pleaded here, particularly .

with respect to the erroneous use of the waiver technique,

are similar to thosé in Capps v. United States, 133 Ct. Cl.

36

811, 137 F. Supp. 721 (1956); Loeb v. United States, 133

Ct. Cl. 937 (1956); and Schiffman v. United States, Ct.

Cl. No. 548-59, decided July 12, 1963. In those cases, .

however, the circumstance which deprived the initial

‘board decision of finality was the reopening of the matter

by the Armed Services. Suter v. United States, 139 Ct. Cl.

466 (1957), cert. denied, 355 U.S. 926, and Weiner v.

United States, 48 Ct. Cl. 445 (1960), likewise do not

support plaintiff's position. In its discussion of those

cases, the court, in Friedman, supra, p. 13, suggested

that the erroneous refusal to grant a retiring board in

those cases deferred the accrual of the claim. In Suter

and Weiner it was held the initial action of the boards

lacked finality because they did not purport to mdke a -

final decision. Further, when the claimants were subse-

quently refused requests for further retirement boards —

it was because it was erroneously believed that the Armed

Services had no authority to grant them. This belief was

based on the Comptroller General’s opinion of April 25,

1951 (30 Gomp. Gen. 409) ,, holding that the Armed Serv-

ices had no authority to award retirement pay to persons

_ disabled in active service but released prior to a deter-

mination being made of their right to receive such pay.

That ruling was subsequently invalidated by this ‘court

in Updike y. United States, 132 Ct. Cl. 627, 132 F. Supp.

™57 (1950).

On the other hand, the refusal to grant plaintiff here a

retiring board was not based on a mistake as to the au-

thority of the Services to grant such a board, but rather

on a decision that the evidence of record did not warrant

a retiring board.

It should also be noted that in the Suter and Weiner

cases the only action which could arguably have barred

the claims was that of the original board, since the erron-

eous refusals to grant a further board occurred in both

‘eases within the 6-year period prior to the time of filing

suit. |

37 ;

In view of the clear holding in Lipp and in Friedman

that the refusal to grant a retiring board is a final ac-

tion upon which a claim accrues, there appears to be no

authority for plaintiff’s proposition that the refusal to

grant him a retiring board lacked finality because it was

erroneous. ‘

The allegations about the errors in the decisions of the

Secretary and of the Correction Beard are really not ma-

terial to the issue to be decided here. If the erroneous-.

ness of the decision of the Secretary of War in denying

plaintiff’s request to appear before a retiring board could

destroy its finality, then the bar of the statute of limita-

tions could always be defeated by a plaintiff simply prov-

ing his case on the merits. Had plaintiff brought suit

within 6 years of June 12, 1947, he would have been re-

quired to show that he was disabled and should have been

aliowed to appear before a retiring board. The only claims

that would be barred by the statute of limitations, under

plaintiff’s theory, would be those without merit. Dis-

missal of a claim because of the bar of limitations wouid

be synonymous with dismissal .on the merits. But, as the

Court of Claims stated in Friedman v. United States,

supra, slip op., p. 24, “* * * it is inherent in all statutes

of limitations that claims otherwise justifiable and justi-

ciable will be denied because suit is not brought in time.”’

Erroneous or not, the decision of the Secretary was final

on its fave. Time within which to file suit started run-

ning when that decision was made. Plaintiff cannot now

defeat application of the statute of limitations by a be-

lated argument that the administrative decision was

erroneous.

The only action occurring within 6 years of the dace

plaintiff's petition was filed was the Correetion Board’s .

_ denial on May 2. 1961, of plaintiff's application to it in

1960 for relief. Plaintiff contends that this action of the ©

board created a new cause of action. It is alleged that the

:

—

board abdicated its statutory function by relying wholly

on the opinion of the Surgeon General, which opinion itself

failed to follow the governing regulations and was erron-

eous in law and fact. |

The only authority for this position appears to bea *

statement by the court in footnote 10 of the Friedman

opinion, supra, slip op., p. 12, reading in part: —

* * * Or it may be that, since the court [in Frederick

y. United States, No. 111-56, deeided July 15, 1960 |

- stressed the irregularities in the Correction Board’s

procedures, it thought that those irregularities in pro-

cedure (rather than the arbitrariness of the sub-

stantive determination) created a new cause of ac-

tion on which the plaintiff could recover.

It appears quite clear, however, that the above lan-

guage was merely a speculation by the court on the ra-

tionale of Frederick v. United States, 150 Ct. Cl. 769

(1960), a case which it declined to treat as a “hard or

full precedent.” The above language would, therefore,

appear to provide no support to plaintiff’s contention that

the action of the Correction Board created a new cause of

action. This is particularly true when the language is

viewed in the light of the holding in Friedman, “that

where, as in the Lipp type of case, the Correction Board

is in effect reviewing a prior adverse determination by a

Retiring Board or the Disability Review Board (or a re-

fusal to convene such a board), the Correction Board's

‘adverse decision does not give rise to a new cause of ac-

tion.” Friedman, supra, slip ep., p. 21.

It is concluded that plaintiff’s claim accrued on June

12, 1947, more than 6 years before the filing of his peti-

tion on June 9, 1961, and that no new cause of action

was created by the adverse decision ef the Correction

Board. .

Om .